Dreger v. Tarrant

162 N.W. 481, 165 Wis. 414, 1917 Wisc. LEXIS 121

• Court: Wisconsin Supreme Court
• Decided: April 24, 1917
• Status: Published

Opinion

Winslow, C. J.

In this case it is held:

1. The findings of fact are amply supported by the evidence and hence cannot be set aside.

2. In view of the long and intimate relations of the parties, the disparity in their intelligence, mental force, and education, the trust which the plaintiff evidently placed in the deceased, and the influence she had over him, it is considered that the conclusion that the deceased fraudulently procured his signature to the receipts is justified by the evidence.

3. The defense of the statute of limitations was waived by the testator by failure to set it up by answer or demurrer. Sec. 4206, Stats.

4. There was no abuse of discretion in refusing to set. aside the waiver and permit the statute to be pleaded by the executor, inasmuch as the executor had adopted the answer of the deceased. The case had been twice tried and the action was ready for final judgment when the motion was made.

5. Sec. 3841, Stats. 1915, providing that no claim barred by the statute of limitations shall be allowed by the county court against an estate, is limited by its terms to claims presented in that court and has no application to an action brought in circuit court before the death of the testator.

By the Court. — Judgment affirmed.